Prentice v. Chewning, 6 Rob. 163

Prentice v. Chewning

6 Rob. 163 | La. | 1843

Bullard, J.

When this case was before us at a former term, (1 Robinson, 71,)'a motion was made to dismiss the appeal, on the ground that the' defendant and appellant had acquiesced in the judgment. The evidence then before us, did not authorize us to say, that there had been such a voluntary execution of the judgment as to preclude an appeal. The cause was remanded for a new trial, On the return of the cause to the court below, the plaintiff filed an amended petition, in which he set forth, that since the first judgment rendered, the parlies had entered into a compromise of all the matters in litigation in the suit, as would appear by the Sheriff’s return on. thej^eri facias, and the twelve months bond given by Selby, without security, and the counter letter between Chewning and Selby.

The Sheriff’s sale shows, that the tract of land was sold with the consent of Chewning, under an execution issued in the case, and thatSe Iby hecame the purchaser. The agreement between Selby and Chewning, which is called a counter letter, recites that Selby had bought at the Sheriff’s sale, with the consent of Chewning, in the suit of Prentice v. James J. Chewning, No. 261, the south half of lot Nos. 67, and the whole of lots Nos, 68, 69 and 70, in Township No. 22, Range 13, east, and also the north half of lot No. 1, in Township No. 21, same range, containing 700 *165acres, more or less, for six thousand five hundred dollars; and also, one undivided half of certain slaves. It was agreed, that if Chewning should pay to Louis Selby, or his order, the full amount of the judgment, costs, and interest in the same case, at any time before the second day of November, 1841, then the Sheriff’s sale, and the sale of the slaves, should be null and void, and the said negroes should be the property of Chewning, as if these sales had never been made. It was distinctly understood, that if Chewning should make a legal tender of the full amount of said judgment to said Selby, before November 2, 1841, all said sales should be null, and the property should be Chewning’s again ; if otherwise, then the said property to be absolutely and irrevocably Selby’s. Chewning waives any right he may have taWe^nu^gmoWo put him in delay; and on the contrary, ChraW^|i®'Selby, and tender him the money, or, in his absence, to depositi|!in bank.

There is another document in tIfhat Chewning had sold, in consideration of *4000, to W. Raileyftiis right of redemption to the land in the agre^|»i.-wM*seiby»iihd authorizing Selby to make a deed to him land, on his paying the amount of the judgment describecFin the contract.

The Sheriff’s deed to Selby shows, that the land was sold to him, for $6500, with the consent of both parties, on a credit of one year, without requiring security. Chewning signed the deed.

If the same evidence had been before us on the former appeal, we should have dismissed it, on the ground of a voluntary payment of the judgment by the appellant. The facts now come oxxt upon the new trial, and satisfy us, that the contract between Selby and the defendant, with the consent of the plaintiff, and the sale by Chewning of his right to redeem, amount to a compromise or transaction, and satisfaction of the first judgment.

It is, therefore, ordered and decreed, that the judgment of the District Court be reversed ; and it is further ordered, that the judgment first rendered be reinstated, and that the plaintiff proceed to enter satisfaction on the same as extinguished by the transaction set forth in the amended petition, and that, for this purpose, the case be remanded to the District Court; and that the defendant pay the costs of the appeal.